Church and state should separate

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Church - StateTake down the nativity sets and cut off the public funding for religious groups. Separation is good for the state, but it’s even better for the church, argues a Catholic lawyer.

By David Lysik, an attorney and visiting professor of religious studies at DePaul University in Chicago.

"Our varied beliefs can bring us together to feed the hungry and comfort the afflicted; to make peace where there is strife and rebuild what has broken; to lift up those who have fallen on hard times. This is not only our call as people of faith, but our duty as citizens of America, and it will be the purpose of the White House Office of Faith-Based and Neighborhood Partnerships."

With these words in February 2009, President Barack Obama signaled his continuation of a program George W. Bush placed at the heart of his 2000 compassionate conservatism campaign-taxpayer-funded faith-based initiatives. For many, Obama's action continued the erosion of the separation of church and state in the United States.

Indeed, the American constitutional principle of separation of church and state has found many detractors of late, both in politics and religion. A spate of cases about the public display of the Ten Commandments got an Alabama judge removed from the bench, to the outrage by many believers. Every holiday season features another religious leader denouncing the "war on Christmas" and enlisting the faithful to tear down the "so-called wall of separation," which is contrary to the nation's Judeo-Christian heritage.

It's true that the religion clauses of the First Amendment to the U.S. Constitution-"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"-do not include the language "a wall of separation." That metaphor comes from an 1802 letter from Thomas Jefferson to the Danbury Baptist Association in which Jefferson asserts that, taken together, the two clauses "build a wall of separation between church and state." As the Rev. Barry Lynn of Americans United for the Separation of Church and State likes to point out, the Constitution doesn't mention but still embodies "fair trial" as well.

Beyond the fact that the metaphor of "the wall" deftly summarizes a constitutional principle, it is also a natural fit for contemporary American Catholics. The reason: Separation most fully embodies Catholic teaching on faith and religious liberty, rooted in the dignity of the human person.

Vatican II's Declaration on Religious Liberty declares that "the human person has a right to religious freedom," meaning that "everyone should be immune from coercion by individuals, social groups, and every human power." The practice of religion consists of "voluntary and free internal acts by which human beings direct themselves to God." If civil authority "presumes to control or restrict religious activity, it must be judged to have exceeded the limits of its power."

In other words separation of church and state both respects the nature of religious faith and supports the maturation of religious liberty as described by the council. Religious institutions will breathe freer and thrive if government does nothing to entangle itself with religious ministries.

What does this separation mean on a practical level? Clearly, government cannot erect a state church. But from the point of view of the religious believer's best interest, to what extent should government promote and advance the ministry of religious institutions?

The most common point of contention on this issue relates to religious displays on public property, such as displays of nativity scenes or the Ten Commandments. While religious groups may initially be excited about seeing religious-themed artifacts erected with government support, there is a high price to pay.

The current legal criteria for evaluating whether such government-supported displays pass constitutional muster includes whether a fictitious so-called "reasonable observer" would understand the display as an endorsement of religion by the state.

And herein lies the rub: Anyone who sees life-size plastic models of Jesus in his manger, Mary, Joseph, an angel, shepherds, and some Wise Men standing alone on the town square will likely see an endorsement of religion. So, what to do? Put up other holiday-themed figures: a plastic Santa Claus house and sleigh, flying reindeer, toy-building elves, candy canes, stuffed toys, Christmas trees, and colored lights. Line Jesus, Mary, and Joseph up with other holiday kitsch, and there is no longer any constitutional problem. The reasonable observer's senses are sufficiently scrambled; she no longer sees a religious nativity scene but a secularized and commercialized holiday display. How is this is a win for religious institutions?

A lesser-known issue-giving state employees Good Friday off with pay-should also worry people of faith. In order to pass constitutional muster, such a government practice would need a secular purpose. But unlike Thanksgiving and Christmas, which are no longer exclusively religious, few would argue that Good Friday is a secular holiday.

But wait! Isn't Good Friday but two days before Easter Sunday? And isn't Easter Sunday just chock full of secular aspects? The Seventh Circuit Court of Appeals is satisfied: "While there may be few secular aspects surrounding Good Friday, there are many secular aspects to Easter-the Easter bunny, Easter baskets, jelly beans, dyed eggs, and Easter-egg hunts. And [the state] has intrinsically tied the Good Friday holiday to the now-secularized Easter holiday." The "now-secularized" Easter robs Good Friday of its religious meaning. That's hardly a victory for the gospel.

Which brings us back to faith-based initiatives. What could be wrong with using tax money to further the ministry of churches? As with holidays, the cost to churches is the loss of the fundamentally religious dimension of the state-funded activity.

The most direct way for governments to fund church ministry is by channeling tax money toward the ministries of religious organizations. While a majority of the current U.S. Supreme Court may find no constitutional problems with government-funding schemes, that does not mean that religious believers should figure that it's good for religion, too.

The one who pays the piper calls the tune. Bush administration fact sheets presented the faith-based initiatives program as a "comprehensive effort to enlist, equip, enable, empower, and expand the work of faith-based" organizations to support the administration's partisan "compassion agenda." President Obama sees his faith-based partnership office as a way to enlist support for the administration's interests in such areas as advising people with mortgage foreclosure issues and providing job-training. Government money coming into church coffers will mean that the priorities of partisan politicos will inevitably and insidiously nudge aside those of church members.

Obama's executive order in this area is clear: The federal government must ensure that any faith-based organizations receiving taxpayers' dollars be held accountable for their performance to ensure that they "achieve measurable results in furtherance of valid public purposes"-in other words, the purposes and policy priorities of the administration, not necessarily the first choices of religious communities.

At issue is the liberty and autonomy of religious institutions. The risk is that religious institutions will become beholden to governmental and political largesse, be enlisted in administration projects that may not be their own first choice of action, and retreat from engaging in a faith-driven ministerial imperative because it just doesn't bring in federal dollars.

And who will be willing to bite the hand that feeds it? A religious institution's prophetic voice, its ability to speak truth to power, will likely be self-censored when the power it needs to address is also the one holding its purse strings. Religious institutions will be more likely to curry favor with the politician du jour than challenge her on fundamental issues of justice. The ultimate result is a weakened religious community. So how is this a win for religion?

It isn't, and believers shouldn't fall for it. If we want to deliver services to those in need, let's do it not from public coffers but with our own alms, freely given, and according to our own evaluation of people's needs. If we want to take a Good Friday off work, we should, but not at the expense of the secularization of our faith's most solemn days. If we want to announce our faith with public displays, let's do it-in our homes and churches and private businesses.

And if we want to defend the integrity of our faith and promote the reign of God, our first line of defense is that principled "wall" of separation, which our constitution and Catholic teaching wisely support.

Each month, advance copies of Sounding Board & Feedback are mailed to a representative sample of U.S. Catholic subscribers. Their answers to questions about Sounding Board & Feedback—along with a balanced selection of their comments about the article as a whole—eventually appear in the pages of U.S. Catholic magazine.